Forming a Premarital Agreement

By
Roscich & Martell Law Firm, LLC
|November 02, 2015

When renting a car, no one expects to get involved in an accident. However,
responsible drivers still obtain the optional insurance, just in case
the unexpected occurs. Premarital agreements are very much the same. No
couple anticipates a divorce. However, especially if one or both spouses
have been married before, a
prenuptial contract is nearly always a very good idea.

What It Covers

Child support is about the only subject that is completely off limits.
A premarital agreement cannot limit the right to child support in any
way, shape, or form.

Many people rightfully associate these contracts with property division,
spousal support, or other financial matters. These are probably among
the most common subjects in many premarital agreements. In addition to
property, many people choose to clarify division of debt issues. That
is largely because money is a very common source of disagreement in many
marriages. So, a premarital agreement removes a potential source of conflict
before the marriage even begins.

A number of premarital agreements also address inheritance and business
succession issues. These provisions also remove a potential source of
conflict: there is virtually no dispute about who will inherit what if
these directives are in black and white.

Legal Issues

For a complete discussion of this subject, please refer to our
recent post on this subject. In a nutshell, the agreement must be at least somewhat
fair and be completely voluntary. In Illinois, “fair” does
not necessarily mean equal, or even anywhere close to equal. “Voluntariness”
is usually evaluated in terms of the financial disclosure made, or not
made, by both sides; people cannot voluntarily sign documents if they
do not understand all the ramifications of those instruments.

Additionally, the premarital agreement must have all the elements of a
contract. These items are:

Unambiguous offer and acceptance;

Consideration, meaning both parties either receive something of value or
surrender a legal right; and

Mutuality, which is often referred to a “meeting of the minds.”

Assuming that the agreement is voluntary, fair, and has all the proper
elements, it is very difficult to overturn.

To start your marriage on a more solid foundation, contact an experienced
Naperville family law attorney today. We serve individuals and families throughout Chicagoland.

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